Passed in 1999, the Anti-Money Laundering Act (No. 6) B.E. 2565 (2022) (the “Act”) aimed to eliminate the funding of illegal activities in Thailand, such as drug trade, corruption, and fraud. Recently, changes have been drafted to align the Act with international Anti-Money Laundering legislation standards. Under Parliament’s advice and consent, the King revised the Act in late 2022.
The Government Gazette published the Act’s revisions on October 24th, 2022. 60 days later, on 23 December 2022, the Act’s revisions came into effect under Thai law.
The most significant changes are to the provisions protecting the following two key areas:
1. An injured party’s rights for predicate offenses that have sustained damages to life, body, mind, freedom, health, or reputation.
2. The rights of the beneficiary of the property requested by the Public Prosecutor
Summary of the main revisions to the Act
1. Section 49’s provisions have been repealed.
Filing for damages follows more thorough procedures, specified in the other revisions.
2. Additional information has been added to section 49/1.
The grounds of petition are clarified: The injured party in the predicate offense has rights if the sustained damages involve their life, body, mind, freedom, health, or reputation.
This section also clarifies which “competent official” will undertake filing the petition, being the Public Prosecutor, and the rules regarding the claim and awarding of damages process (Ministerial regulation now has jurisdiction).
3. Paragraph two of Section 50, regarding asset ownership, has been repealed and replaced.
Beneficiaries can still file a petition to protect their rights before the Court issues an order, but the requirements’ wording has been modified to show that they are “the bona fide interested party and for value or have acquired the interests in good faith.”
4. Section 52 has been repealed and replaced.
If the Court believes the petitioned property is connected to the commission of the crime, they will order the protection of the injured party’s rights before compensating them for the property.
Secondly, if the person claiming to be the interested party has ever had a close relationship with whomever committed the offence, the property is assumed to have been acquired in bad faith.
5. The Act has added a new section, Section 52/1, addressing the process for dealing with cases where more than one property may be connected to the crime.
If a property connected to the crime has been included with another property to the extent that they are inseparable, the Court can sell the property by public auction. This allows it to repay damages to the injured party that are proportionate to its market value.
6. Section 53 of the 1999 Act has been repealed and replaced.
An injured party may now claim damages against a property already vested in the State, allowing the property to be returned, rights to be protected or the price of the damages thereof to be paid instead.
The following section provides more in-depth, non-verbatim summaries of the amendments made.
The Act repealed the provisions of paragraph six, section 49 of the Anti-Money Laundering Act B.E. 2542 (1999) (“The 1999 Act”), and provides more thorough, specific qualifications or procedures for filing for damages, including applicable exclusions by the state.
The following has been added to section 49/1 of the 1999 Act:
When a predicate offence results in an injured party, the Secretary-General will gather information about the injured party and the damages suffered to send to the Public Prosecutor. The Public Prosecutor will then file a petition in Court and request an order for the property connected with the commission of the offence to be returned or repaid to the injured party.
After this, the Office shall proceed with the Court order, where the provisions of Section 49, paragraph two, paragraph three, and paragraph four, shall apply. The Office shall publish in the Government Gazette informing the injured party to file a petition with evidence showing details of the damages within ninety days from the publication date.
If the injured party in the predicate offense’s damages involve their life, body, mind, freedom, health, or reputation, the provisions of paragraph one shall apply to the repayment of damages to the injured party.
The Court shall decide the extent of damages on a case-by-case basis. However, the Court’s order under paragraph one or paragraph two shall not prejudice the injured party’s rights to file a lawsuit claiming compensation from the offender.
Ministerial Regulations shall set out the rules regarding the gathering of facts concerning the injured party and the damages, the petition and the filing of the petition, and the safekeeping and management of the property for returning or repaying to the injured party under paragraph one and paragraph two.
Note: The injured party in a predicate offense under this Section must be a person directly damaged by the predicate offense who had no part in committing it.
The Act repealed and replaced paragraph two of Section 50, of the 1999 Act, which outlined that:
1. The owner is the true owner of the asset (which must be unrelated to the crime); and
2. They have received the transfer of ownership honestly and morally, either through compensation or charity,
Instead, the following provision has been implemented:
If the Public Prosecutor has filed a petition for the property to be vested in the State under Section 49, the interested party in the property may also file a petition to protect their rights before the Court issues an order. They must show to the Court that they are the bona fide interested party and for value or have acquired the interests in good faith.
Section 52 of the 1999 Act shall be repealed and replaced by the following:
If the Court believes the property under the petition is related to the commission of an offense, the Court shall issue an order for the protection of the rights of the said interested party before issuing an order that the property is returned or repaid to the injured party (under Section 49/1) or vested in the State (under Section 51). In this case, the Court may set any conditions to it.
For this Section, if the person claiming to be the interested party under Section 50, paragraph two, has had, or used to have, close relationships with an offender of a predicate offense or an offense relating to anti-money laundering, it shall be presumed that the said interests exist or has been acquired in bad faith.
The following shall be added as Section 52/1 of the 1999 Act, outlining a case where a property connected to the crime, has been included with another property, to the extent that they are inseparable, or the separation would cause damages or deterioration to the property.
Upon the Court having issued an order that the property be returned or repaid or compensated for damages thereof to the injured party under Section 49/1, or that it be vested in the State under Section 51, the Court shall be empowered to sell the duly included property by public auction.
The proceeds from this shall be returned to the owner or the interested party and repaid to the injured party or vested in the State, according to the proportion of the value of the property duly included. However, the Regulations of the Board under Section 57, paragraph three, shall apply to the sale by public auction as well (with the necessary changes made).
The following will occur if the owner or the interested party in the duly included property has filed a petition to the Court before the sale by public auction.
Given that the amount fixed by the Court based on the market price and the proportionate value comparative to the property in connection with the commission of offence, (on the day the owner or the interested party filed the petition) has been placed with the Office within a period specified by the Court, the Court shall order the sale by public auction suspended.
The aforementioned amount will be repaid to the injured party or be invested in the State in lieu of the property in connection with the commission of the offence, and the property shall be returned to the owner or the interested party accordingly.
Section 53 of the 1999 Act, which outlines the right to retrospectively claim property that has already been forfeited to the state, shall be repealed and replaced by the following:
If the Court issues an order that a property is vested in the State under Section 51, and an owner, transferee, or otherwise interested party of said property petitions the Court, the Court will conduct an inquiry.
If it finds that the case is subject to the (new) provisions of section 50, the Court shall then order the said property to be returned or set conditions which protect the rights of the interested property. If the property cannot be returned or the rights protected, the price or the damages thereof shall be paid instead.